Administrative Agency Developments: January 2019

by Practical Law Labor & Employment

Department of Homeland Security (DHS)

January 18, 2019: The DHS published a notice announcing that the Secretary of Homeland Security, in consultation with the Secretary of State, is identifying 84 countries whose nationals are eligible to participate in the H-2A program and 81 countries whose nationals are eligible to participate in the H-2B program for the coming year.

January 29, 2019: USCIS announced that applicants can now complete and file Form N-600, Application for Certificate of Citizenship, and Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322 online.
January 28, 2019: USCIS announced that it will resume premium processing on January 28, 2019 for all FY2019 H-1B cap petitions, including those eligible for the advanced degree exemption. The temporary suspension of premium processing remains in effect for all other categories of H-1B petitions to which it applied.

January 31, 2019: The DOL's Office of Foreign Labor Certification (OFLC) announced that it is publishing an updated list of the names of foreign labor recruiters, containing the identities of people or entities working for the recruiter that employers have indicated they engaged in the recruitment of prospective H-2B workers to perform the work described on their Form ETA-9142B, H-2B Application for Temporary Employment Certification.
January 23, 2019: The DOL published a final rule to adjust for inflation its civil money penalty levels. For more information, see, Legal Update: DOL Increases Civil Money Penalties for 2019, Effective January 23, 2019.
January 11, 2019: The DOL announced that the iCERT system for application processing is scheduled to open at 2:00p.m. EST on January 7, 2019. The Department has enhanced system capacity and performed intensive testing and performance turning on the iCERT system to simulate the expected activity of a large number of simultaneous system users. Out of an abundance of caution, the Department is prepared to activate an emergency application filing process, called the H-2B Case Submission Ticketing Portal, in the unlikely event a system disruption occurs.
January 6, 2019: The DOL released new FAQs on the 2019 iCERT system.

January 23, 2019: OSHA posted new FAQs on controlling silica in general industry.

January 31, 2019: The NMB issued a proposed rule to amend its regulations to provide a straightforward procedure for the decertification of representatives. The NMB believes this change will fulfill the Railway Labor Act's statutory mission of protecting employees' right to select their representative. The change will ensure that employees have a say in who their representative is and eliminate unnecessary hurdles for employees who do not want to be represented.

January 11, 2019: The NLRB announced that in light of the recent decision by the US Court of Appeals for the District of Columbia Circuit in Browning-Ferris Industries of California v. NLRB, it will extend the time for submitting comments on a proposed regulation establishing the standard for determining whether two employers are a joint employer of a group of employees under the NLRA. Comments regarding the proposed rule must be received by the Board on or before January 28, 2019. Comments replying to submitted initial comments are now due by February 11, 2019. For more information, see Legal Updates, NLRB Proposes Rule to Define Joint Employer and DC Circuit Upholds Part of NLRB's 2015 Joint Employer Analysis, Pans its Ambiguous Application to Facts.

For additional labor and employment developments, see Labor & Employment: Updates.